Citation NR: 9610919
Decision Date: 04/11/96 Archive Date: 04/29/96
DOCKET NO. 94-28 312 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for disabilities of the
right forearm, wrist, ankle.
2. Entitlement to service connection for a gastrointestinal
disability manifested by rectal bleeding.
3. Entitlement to service connection for a disability of the
chest and ribs.
4. Entitlement to an increased rating for status post
excision of the prominence of the left scapula with bankart
repair and revision.
5. Entitlement to a compensable rating for bilateral
sensorineual hearing loss.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Thomas H. Tousley, Counsel
INTRODUCTION
The veteran had active military service from March 1986 to
May 1991.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal of an August 1991 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.
The Board notes that the veteran stated in his March 1992
Substantive Appeal that his tinnitus was being treated by the
VA. He reported to a physician at a VA ear examination in
September 1994 that he had experienced ringing in the ears
since the explosion of a grenade simulator by his head during
service. The examiner diagnosed tinnitus bilateral. The
veteran’s statements raise a possible claim for service
connection for tinnitus. The Board determines that this
possible claim is not inextricably intertwined with any of
the claims before the Board, and refers this matter to the RO
for appropriate action. See Harris v. Derwinski, 1 Vet.App.
180, 193 (1991).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has disorders of the right
forearm, wrist, and ankle that were due to injuries sustained
during service. He asserts that he has experienced rectal
bleeding since service. He further contends that his
service-connected left shoulder disability has caused an
disorder of his chest and ribs. He also asserts that his
left shoulder disability is more severe than currently
evaluated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s claims for
service connection for disabilities of the right forearm,
wrist, ankle, and chest and ribs, must be denied because he
has not submitted well grounded claims; service connection
has been established for an anal fissure; the preponderance
of the evidence is against a compensable rating for bilateral
sensorineural hearing loss; a 20 percent rating is warranted
for the veteran’s left shoulder disability for the period
from May 1991 to June 1993; and the preponderance of the
evidence is against a rating in excess of 20 percent from
August 1993.
FINDINGS OF FACT
1. The veteran’s claims for service connection for
disabilities of the right forearm, wrist, and ankle, are not
plausible or capable of substantiation because there is no
competent evidence of current disabilities.
2. The veteran’s current rectal bleeding is due to an anal
fissure noted during service.
3. The veteran’s claim for service connection for a
disability of the chest and ribs is not plausible or capable
of substantiation because there is no competent evidence of a
current disability.
4. The results of VA audiometric testing of the veteran’s
hearing in June 1991 revealed average puretone decibel loss
for the right ear of 15 and for the left ear of 16 and speech
recognition ability of 94 percent in the right ear and of 92
percent in the left ear.
5. The results of VA audiometric testing of the veteran’s
hearing in September 1994 revealed average puretone decibel
loss for the right ear of 24 and for the left ear of 26 and
speech recognition ability of 72 percent in the right ear and
of 88 percent in the left ear.
6. The veteran is right-handed.
7. For the period from May 1991 to June 1993, the veteran
experienced recurrent dislocation of the left shoulder.
8. For the period from August 1993, limitation of motion of
the veteran’s left scapulohumeral joint to 25 degrees from
the side has not been demonstrated.
9. The veteran’s left shoulder disability does not present
an exceptional or unusual disability picture.
CONCLUSIONS OF LAW
1. The veteran has not submitted well grounded claims for
service connection for disabilities of the right forearm,
wrist, and ankle. 38 U.S.C.A. § 5107(a) (West 1991).
2. An anal fissure was incurred in service. 38 U.S.C.A.
§§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1995).
3. The veteran has not submitted a well grounded claim for
service connection for a disability of the chest and ribs.
38 U.S.C.A. § 5107(a) (West 1991).
4. The criteria for a compensable rating for the veteran’s
bilateral sensorineural hearing loss have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102,
3.321(b)(1), 4.1, 4.7, 4.10, 4.85, 4.87, Diagnostic Code 6100
(1995).
5. The criteria have been met for a rating of 20 percent for
the veteran’s status post excision of the prominence of the
left scapula with bankart repair and revision for the period
from May 8, 1991 to June 2, 1993. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.3, 4.7,
4.10, 4.40, 4.71a, Diagnostic Code 5203 (1995).
6. The criteria for a rating in excess of 20 percent for the
veteran’s status post excision of the prominence of the left
scapula with bankart repair and revision have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102,
3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.71a, Diagnostic
Code 5201 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Service connection may be accomplished by affirmatively
showing inception during service. 38 C.F.R. § 3.303(a)
(1995). When a chronic disease is shown during service,
subsequent manifestations of the same disease are service-
connected unless clearly attributable to intercurrent causes.
Continuity of symptomatology is required only when the
condition noted during service is not shown to be chronic or
the diagnosis of chronicity may be legitimately questioned.
38 C.F.R. § 3.303(b) (1995). Service connection can be
established by presumption for certain chronic diseases, such
as arthritis, manifest to a degree of 10 percent or more
within one year after service. 38 C.F.R. §§ 3.307, 3.309
(1995). However, presumptive periods are not intended to
limit service connection for any disease diagnosed after
service when all the evidence establishes that the disease
was incurred in service. 38 C.F.R. § 3.303(d) (1995).
The veteran who submits a claim for VA benefits has the
burden of submitting evidence to justify a belief by a fair
and impartial individual that the claim is well grounded. 38
U.S.C.A. § 5107(a) (West 1991). “A well grounded claim is a
plausible claim, one which is meritorious on its own or
capable of substantiation.” Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990). Solely for determining whether a claim is
well grounded, evidence submitted by the veteran will be
presumed credible. King v. Brown, 5 Vet.App. 19, 21 (1993).
Furthermore:
[I]n order for a claim to be well
grounded, there must be competent
evidence of current disability (a medical
diagnosis); of incurrence or aggravation
of a disease or injury in service (lay or
medical evidence); and of a nexus between
the inservice injury or disease and the
current disability (medical evidence).
The nexus requirement may be satisfied by
a presumption that certain diseases
manifesting themselves within certain
prescribed periods are related to
service.
Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (citations
omitted). Once the veteran has submitted a well grounded
claim, the VA has a duty to assist in the development of the
claim. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
A. Right Forearm, Wrist, and Ankle
The service medical records show that the veteran was treated
conservatively in April 1987 for contusions and swelling
after the tread of a tracked vehicle struck his right
forearm. X-rays of the right elbow were within normal
limits. In January 1988, he received conservative treatment
for a sprained right ankle. X-rays of the right ankle were
within normal limits. At the end of October 1988, he was
treated conservatively for a laceration of the right palm and
bruises of the right knuckles after he fell on top of an
ashtray. A consulting orthopedic physicians’ assistant noted
an irregular puncture/laceration in the palm between the
third and fourth metacarpophalangeal joints. The veteran had
limitation of motion of the fingers secondary to pain and
decreased sensation in the two adjacent fingers. X-rays of
the right hand revealed no foreign bodies. The diagnostic
assessment of a physicians’ assistant at the end of November
1988 was a resolving laceration with sensory deficit. No
complaints, findings, or diagnoses referable to the right
elbow, forearm, wrist, hand, and ankle were noted in the
remainder of the service medical records, including the
report of the examination for separation in November 1990.
The veteran reported at a VA Compensation and Pension
examination in June 1991 that he was not experiencing any
symptoms regarding his right wrist and forearm. He indicated
that he had twice sprained his right ankle. He had a normal
range of motion of the elbows, wrists, and hands. The
examiner did not note any abnormalities of the right ankle,
including limitation of motion of the joint. The examiner
noted scars in the area of the veteran’s left shoulder, but
none in the right hand. X-rays of the right forearm and
wrist revealed no abnormalities. The pertinent diagnoses
were history of trauma to the right forearm and wrist and
status post sprain of the right ankle.
In a statement attached to a VA Form 9, Appeal To Board Of
Veterans’ Appeals, dated in July 1994, the veteran related
that he hurt his right ankle during a road march in basic
training and used crutches for about two weeks. He added
that he was told he had flexed the arch in his foot. He
reported that he later experienced a bad sprain of the right
ankle during service. He stated that his right ankle now
gives him problems when he stands for a long time, runs, or
climbs stairs. He related that he had hurt his right wrist
and forearm in service and that he was still experiencing
problems with his right wrist and forearm with constant pain
and difficulties picking-up and holding objects.
The Board notes that the veteran was treated during basic
training in April 1986 for fallen arches of the right foot
and not for a right ankle disorder. In addition, the
evidence of conservative treatment for his January 1988 ankle
sprain and the absence of any subsequent notations referable
to the right ankle in the service medical records does not
indicate a severe strain. In addition, the veteran’s July
1994 statements regarding continual problems with his right
wrist and forearm since service are contradicted by his
statements to the VA examiner in June 1991. He has provided
no evidence of treatment for disorders of the right forearm,
wrist, and ankle since service, and the VA examiner found no
such disabilities. The Board determines that the veteran’s
claims for service connection are not well grounded because
there is no competent evidence (medical diagnoses) of current
disabilities of the right forearm, wrist, ankle. See Caluza
v. Brown, 7 Vet.App. at 506; Brammer v. Derwinski, 3 Vet.App.
223, 225 (1992). Therefore, his claims must be denied, and
the VA does not have a duty to assist him in the development
of these claims. See Edenfield v. Brown, 8 Vet.App. 384,
389-390 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 55
(1990).
The Board has denied the veteran’s claim on a basis (that the
claim is not well grounded) that is different from the basis
relied upon by the RO to deny the veteran’s claim. When the
Board addresses a question that has not been addressed by the
RO, the Board must consider whether the claimant has been
given adequate notice to respond, and if not, whether or not
the claimant has been prejudiced by the Board’s action. See
Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In light of
the implausibility of the veteran’s claim, and his failure to
meet his initial burden in the adjudication process, the
Board determines that he has not been prejudiced by the
Board’s decision. Furthermore, the Board determines that the
veteran has been sufficiently advised by the RO during the
appeals process of the evidence required to submit a well
grounded claim for an ear disorder. Therefore, a remand is
not required for this reason. See Robinette v. Brown, 8
Vet.App. 69, 77 (1995).
B. Gastrointestinal Disorder
The Board determines that the veteran has submitted a well
grounded claim for service connection for a gastrointestinal
disorder manifested by rectal bleeding within the meaning of
38 U.S.C.A. § 5107(a) (West 1991), and that the evidence is
sufficient to equitably decide his appeal.
The service medical records show that in December 1987 the
veteran complained of two to three day episodes of blood in
his feces during the previous one to two years without
diarrhea or abdominal pain. He reported intermittent bright
red rectal bleeding during a hospitalization for his left
shoulder disorder from November to December 1989. He
reported the same problem, but with painful bowel movements,
during a hospitalization for his left shoulder disorder from
June to July 1990. An examination revealed increased
sphincter tone, a heme negative stool, and a posterior
midline anal fissure with no masses. It was noted on the
report of medical history for the veteran’s separation
examination in November 1990 that a tumor had been removed
from his stomach in 1977 and that he had experienced periodic
bleeding which was being evaluated.
According to a report of a VA gastrointestinal consultation
in April 1992, the veteran complained of pain and bleeding
with each bowel movement. A VA lower gastrointestinal study
in February 1992 was normal. The consulting VA physician in
April 1992 found normal muscle tone of the rectum, no
evidence of blood, slight perirectal redness, and mild
anterior tenderness. A flexible sigmoidscopy later in April
1992 revealed no evidence of active hemorrhoids or anal
fissure, but noted the veteran’s symptoms were suggestive of
anal fissure. The veteran testified at a hearing at the RO
in April 1992 that he had experienced rectal bleeding three
times during the previous week after bowel movements and that
a VA physician recommended he sit in the bathtub after having
bowel movements. (Hearing transcript, page 8). The veteran
related in his July 1994 statement that he was still
experiencing rectal bleeding.
An anal fissure was found during service in the middle of
1990. The clinical findings of perirectal redness and
anterior tenderness in April 1992 objectively demonstrated a
disorder of the veteran’s rectum. The VA physician’s medical
opinion in April 1992 that the veteran’s symptoms were
suggestive of anal fissure is supported by the anal fissure
detected during service and the veteran’s consistent
reporting of rectal bleeding since the end of 1987. Although
anal fissure was not definitively manifested at the time of
the VA gastrointestinal evaluation in the Spring of 1992, the
Board finds that the clinical findings and the veteran’s
reported symptoms provide competent evidence of a current
disability. The Board resolves reasonable doubt in the
veteran’s favor and determines that service connection has
been established for anal fissure.
C. Chest and Ribs
The service medical records show that in September 1990, the
veteran complained of a four week history of pleuritic type
chest pain that worsened with exertion. Tenderness was
detected over the right second and third costosternal joints
with mild pressure. The diagnostic assessment was probable
costochondritis, rule out pericarditis. The results of an
electrocardiogram were considered borderline. An
echocardiogram revealed no abnormalities. At the end of
October 1990, he complained of the sudden onset of chest pain
and pain on deep inspiration. The examining physician noted
that the veteran was in obvious pain and was unable to move
the left shoulder well. The examining physician noted a
chest X-ray and a second electrocardiogram were normal. The
diagnostic assessment was costochondritis. The veteran
reported at his separation examination in November 1990 that
he was experiencing pain in the chest. No abnormalities of
the chest and ribs were noted on examination, including any
cardiovascular or orthopedic abnormalities.
The veteran testified at the RO hearing in April 1992 that
when his left shoulder has popped out of the joint, it has
pushed a bone in the center of his chest. (Hearing
transcript, page 5). He added that when the bone popped out,
it pushed on the heart sac. (Hearing transcript, page 16).
He related in his July 1994 statement that his service-
connected left shoulder disability caused problems in his
neck and chest. He indicated that the bone in the center of
his chest had popped out and swelled, causing him to drop to
the ground and have a difficult time breathing and moving.
The Board notes that the veteran asserts that his service-
connected left shoulder disability has caused an orthopedic
disorder of the chest and ribs which interfere with his
breathing. However, costochondritis has not been diagnosed
since service and no clinical findings referable to that
disorder have been made to provide competent evidence of a
current disability. Despite the veteran’s assertions, no
disability of the chest and ribs has been diagnosed after
service, and he does not possess the medical expertise to
render such a diagnosis. See Espiritu v. Derwinski, 2
Vet.App. 492, 494-495 (1992). The service medical records
show that he complained of pain in the chest and ribs around
the same time that he was receiving treatment and evaluation
for his left shoulder disability. However, in the absence of
any competent medical evidence of a current disability
resulting from his service-connected shoulder disability, the
evaluation for his shoulder disability will encompass any
pain and discomfort of the chest and ribs which can be
attributable to the shoulder disability.
The Board determines that the veteran’s claim for service
connection for a disability of the chest and ribs must be
denied on the basis that it is not well grounded. The Board
also finds that the veteran has not been prejudiced by its
decision, and that he has been sufficiently advised during
the current appeal of the evidence necessary to well ground
his claim.
II. Increased Rating
Disability ratings are rendered upon VA’s Schedule for Rating
Disabilities as set forth at 38 C.F.R. Part 4 (1995). The
percentage ratings represent as far as can be practicably
determined, the average impairment in earning capacity in
civil occupations and the disability must be viewed in
relation to its history. 38 C.F.R. § 4.1 (1995). Medical
reports must be interpreted “in light of the whole recorded
history, reconciling the various reports into a consistent
picture so that the current rating may accurately reflect the
elements of disability present. Each disability must be
considered from the point of view of the veteran working or
seeking to work.” 38 C.F.R. § 4.2 (1995). “The basis of
disability evaluations is the ability of the body as a whole,
or of the psyche, or of a system or organ of the body to
function under the ordinary conditions of daily life
including employment.” 38 C.F.R. § 4.10 (1995).
In addition, in evaluating disabilities of the
musculoskeletal system, it is important to consider that the
functional loss of use of a part of that system “may be due
to the absence of part, or all, of the necessary bones,
joints and muscles, or associated structures, or to
deformity, adhesions defective innervation, or other
pathology, or it may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
claimant undertaking the motion.” 38 C.F.R. § 4.40 (1995).
“Hence, under the regulations, the functional loss due to
pain is to be rated at the same level as the functional loss
when flexion is impeded.” Schafrath v. Derwinski, 1 Vet.App.
589, 592 (1991). The disability of a joint is manifested
by the reduction of the normal excursion of movement of the
joint in different planes. To determine the extent of such
disability, inquiry will be directed to such considerations
as less or more movement than normal, weakened movement,
excess fatigability, incoordination, and pain on movement,
swelling, deformity, or atrophy of disuse. “Instability of
station, disturbance of locomotion, interference with
sitting, standing and weight-bearing are related
considerations.” 38 C.F.R. § 4.45 (1995).
“Sections 4.40 and 4.45 together thus make clear that pain
must be considerable capable of producing compensable
disability of the joints.” Schafrath v. Derwinski, 1 Vet.App.
at 592. Furthermore, “[a] compensable rating is warranted if
the claim for functional loss due to pain is ‘supported by
adequate pathology and evidenced by the visible behavior of
the claimant undertaking the motion.’” Id.
Where there is a question as to which of two evaluations
apply, the higher of the two will be assigned when the
disability picture more nearly approximates the criteria for
the next higher rating. 38 C.F.R. § 4.7 (1994). In the
exceptional case where the schedular evaluations are found to
be inadequate, an extra-schedular rating commensurate with
the average impairment of earning capacity may be approved.
“The governing norm in these exceptional cases is : A
finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards.” See 38 C.F.R. § 3.321(b)
(1995).
A. Hearing Loss
The Board determines that the veteran has submitted a well
grounded claim for an increased rating for bilateral
sensorineural hearing loss because he has expressed
disagreement with the initial evaluation of this disorder by
the VA, and the rating schedule provides the possibility of a
higher rating. See Shipwash v. Brown, 8 Vet.App. 218, 224
(1995). The Board is satisfied that the evidence is
sufficient to equitably decide his appeal regarding this
claim.
On the authorized audiological evaluation in June 1991, pure
tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
5
40
LEFT
0
5
15
45
The average puretone decibel loss for the right ear was 15
and for the left ear was 16. Speech audiometry revealed
speech recognition ability of 94 percent in the right ear and
of 92 in the left ear. The numeric designation for each ear
is “I” under Table VI of 38 C.F.R. § 4.87 (1995). According
to Table VII, a noncompensable evaluation is warranted under
Diagnostic Code 6100.
On the authorized audiological evaluation in September 1994,
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
15
55
LEFT
10
15
20
60
The average puretone decibel loss for the right ear was 24
and for the left ear was 26. Speech audiometry revealed
speech recognition ability of 72 percent in the right ear and
of 88 in the left ear. The numeric designation for the right
ear is “IV” and for the left ear is “II” under Table VI of
38 C.F.R. § 4.87 (1995). According to Table VII, a
noncompensable evaluation is warranted under Diagnostic Code
6100.
The Board recognizes that VA audiological evaluations show an
increase in severity of the veteran’s bilateral sensorineural
hearing loss. However, the “[a]ssignment of disability
evaluations for hearing impairment are derived by a
mechanical application of the rating schedule to the numeric
designations assigned after audiometric evaluations are
rendered.” Lendenmann v. Principi, 3 Vet.App. 345, 349
(1992). When the rating criteria are applied to the
audiometric results in this case, only a noncompensable
rating can be assigned. In addition, there has not been
demonstrated in this case an unusual or exceptional
disability picture as evidenced by frequent hospitalizations
or marked interference with employability or other related
factors to warrant an increased evaluation on an extra-
schedular basis. See 38 C.F.R. § 3.321(b)(1) (1995). The
Board determines that the preponderance of the evidence is
against a compensable rating for the veteran’s bilateral
sensorinueral hearing loss.
B. Left Shoulder
Since the veteran appealed the RO’s initial rating of his
left shoulder disability, the Board determines that the
veteran has submitted a well grounded claim for an increased
rating, and that the evidence is sufficient to equitably
decide his appeal. See Shipwash v. Brown, 8 Vet.App. at 224.
By a rating decision in August 1991, the RO assigned a rating
of 10 percent effective the day after the veteran’s
separation from service. By a rating decision in December
1994, the RO assigned a temporary 100 percent convalescent
rating pursuant to 38 C.F.R. § 4.30 (1995) for the period
from June 3, 1993 to July 31, 1993. The veteran has not
appealed the assignment of the temporary 100 percent rating.
The RO also increased the schedular rating from 10 to 20
percent effective August 1, 1993. Although the veteran was
awarded an increased rating during his current appeal, the
Board must determine the appropriate rating prior to and
after the period of the temporary 100 percent rating since he
was not awarded the maximum available benefit. See AB v.
Brown, 6 Vet.App. 35, 38-39 (1993).
The service medical records reveal that a painful prominent
superior angle of the veteran’s left scapula was resected in
November 1989. Conservative treatment with nonsteriod
medication and physical therapy failed to relieve the chronic
pain in his left shoulder. An arthroscopy in April 1990
revealed an anterior glenoid labrum tear and anterior
glenohumeral subluxation. A left shoulder anterior Bankart
repair was performed in June 1990. The operation report
reveals the surgeon discovered a detached anterior labrum
from the 7 o’clock to the 9 o’clock position. (The labrum
articularis is “a prominent fibrocartilagionous rim around
the rim of certain joints, such as the...genoid cavity of the
scapula.” Dorland’s Illustrated Medical Dictionary 888 (27th
ed. 1988)). The labrum was not detached from the neck of the
scapula, but it was lax. The surgeon created a flap in the
labrum and attached the flap to the glenoid cavity by use of
sutures incorporated into a screw. (The cavitas glenoida is
“a depression in the lateral angle of the scapula for
articulation with the humerus.” Dorland’s Illustrated Medical
Dictionary 286 (27th ed. 1988)). The surgeon noted the
procedure significantly tightened the joint to a more normal
degree. The diagnoses on discharge were left shoulder pain,
chronic, atraumatic, and involuntary and voluntary anterior
shoulder subluxation with Bankart lesion.
A report of a service medical board dated in December 1990
reveals that rehabilitation had failed to relieve his chronic
pain and to regain serviceable motion in the left shoulder
joint. He no longer experienced dislocations of the joint,
but he reported that he felt the shoulder joint slip and rub
with the activities of daily living. On examination, there
was crepitus on passive motion of the joint. There was
tenderness to palpation over the posterior glenohumeral joint
with an anterior apprehension sign. No neurovascular or
motor deficits were found. Range of motion of the left
shoulder was equal to the right shoulder with the exception
of loss of external rotation on the left of approximately 15
degrees. The medical board determined that he was unable to
complete the required physical fitness test or to perform the
duties of an Infantryman. The veteran was medically
discharged from service due to his left shoulder disability
in May 1991.
At the VA Compensation and Pension examination in June 1991,
the veteran reported symptoms of a catching, grinding, and
popping sensation with movement of the left shoulder joint as
well as pain and stiffness. It was noted that he was right-
handed. The examiner noted 5 and 1/2 inch surgical scars
over the superior border of the left scapula and over the
anterior portion of the left shoulder. Range of motion of
the left shoulder was: flexion to 140 degrees, abduction to
175 degrees, internal rotation to 90 degrees, and external
rotation to 90 degrees. The examiner heard crepitus on
movement of the joint. X-rays of the left shoulder revealed
a leuncy over the inferior aspect of the glenoid, probably
due to the described repair of the Bankart lesion, but no
evidence of subluxation or erosive changes. The pertinent
diagnosis was status post excision of the prominence of the
left scapula and Bankart repair with residual limitation of
motion and degenerative joint disease.
The veteran testified at the RO hearing in April 1992 that
his left shoulder dislocated about five to six times per
month. He added that the dislocation occurred anytime that
he attempted to perform any activity beyond normal, such as
lifting. (Hearing transcript, page 3). He testified that
depending on the extent of the dislocation, he either put the
joint back into place or he stood in the shower under hot
water until the muscles relaxed enough for him to put the
joint back into place. He related that he was experiencing
an extreme amount of pain. (Hearing transcript, page 4). He
further testified that he was unable to lift his left arm
high enough to pick something off the shelf. (Hearing
transcript, page 10). He added that he had not received any
private treatment since service because he could not afford
to pay for it. He reported that he was taking Tylenol for
his pain because the VA physicians did not want to prescribe
Motrin because of the potential adverse effects on his
gastrointestinal system. (Hearing transcript, page 14).
The veteran was hospitalized by the VA in June 1993 for open
hardware removal and a revision of the Bankart repair. It
was noted that he had continued subluxation, instability, and
painful hardware. A surgical pathology report revealed that
a screw and multiple pieces of suture with scar tissue were
removed. X-rays of the left shoulder taken after the
revision of the Bankart repair were normal. The diagnosis
was history of left shoulder injury, status post Bankart
repair and revision.
In the veteran’s statement attached to a VA Form 9, Appeal To
Board Of Veterans’ Appeals, dated in July 1994, he stated
that he was unable to hold or lift anything with his left arm
without pain. He reported that he had gone back to his
treating VA physician several times since the surgery because
of his left shoulder problems, including pain.
At the VA Compensation and Pension examination in September
1994, he reported that he believed his left shoulder
disability was the same as it was prior to the first Bankart
repair. He related that he experienced a popping and
grinding sensation in the joint. He added that he was unable
to achieve full forward flexion and that the joint locked at
a particular level. He reported constant pain in the left
shoulder which worsened when he attempted to lift something.
He indicated he was unable to move his left arm above his
head, and that he avoided using his left arm much of the
time.
The examiner noted a 13 and 1/2 centimeter scar on the
anterior area of the left shoulder, and a 16 centimeter scar
superior to the scapula. There were also two other scars,
each one centimeter in length, over the left deltoid, and
another scar, one centimeter in length, lateral to the 16
centimeter scar. All scars were healed and nontender. The
range of motion of the left shoulder was: forward flexion to
100 degrees, extension to 45 degrees, abduction to 115
degrees, internal rotation to 30 degrees, and external
rotation to 40 degrees. When he performed forward flexion of
each shoulder joint, his left index finger was 4 centimeters
closer to his body than his right index finger. He
complained of pain on the range of motion of the left
shoulder joint except extension.
1. Period from May 1991 to June 1993
The Board notes that the veteran testified at the RO that he
had to learn to drive by using his right arm because he
normally drives by using his left arm. However, on the two
VA examinations, he was noted to be right handed, and there
has been no evidence that his left arm is otherwise his
dominant extremity. The Board finds that the evidence
establishes that the veteran’s left arm is his minor
extremity.
The limitation of motion of the veteran’s left shoulder shown
during service in December 1990 and during the VA examination
in June 1991 was not sufficient to warrant an increased
rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (1995),
because he was able to move his arm above shoulder level.
However, his testimony at the RO in April 1992 that he had
experienced recurrent dislocations of the shoulder joint
since service is supported by evidence that his treating VA
physician performed a revision of the Burkart repair in June
1993 due to recurrent subluxation of the joint. The Board
determines that this evidence supports assignment of a rating
of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5203
(1995) for dislocation of the scapula from May 1991 to June
1993. The Board would point out that 20 percent is the
highest evaluation assignable under that diagnostic code.
The Board has considered whether a rating in excess of 20
percent is warranted during this period based on a greater
limitation of motion due to pain on use including during
“flare-ups” of the left shoulder disorder. See DeLuca v.
Brown, 8 Vet.App. 202 (1995). In order for a rating of 30
percent to be warranted for limitation of motion of the minor
extremity, there must be limitation of the arm to 25 degrees.
A review of the evidence for the period in question,
including the veteran’s testimony at the RO in April 1992,
does not establish such limitation of motion, even to the
degree that it more nearly approximates the next higher
rating. 38 C.F.R. § 4.7 (1995).
The Board notes that degenerative joint disease of the left
shoulder joint was diagnosed in June 1991 even though no X-
rays have confirmed the disease. However, even if
degenerative joint disease was confirmed, the veteran could
not receive a higher rating since the maximum rating for
arthritis is 20 percent under 38 C.F.R. § 4.71a, Diagnostic
Code 5003. If Diagnostic Code 5202 were applicable, the
evidence has not shown impairment of the humerus and, he is
already in receipt of the maximum 20 percent rating for
dislocation of the scapulohumeral joint of the minor
extremity. In addition, the Board notes that the veteran has
several scars resulting from his left shoulder surgeries.
Without deciding whether a separate rating could be granted
for the scars without violating the prohibition against the
pyramiding of ratings, see 38 C.F.R. § 4.14 (1995), a
compensable rating could not be granted under 38 C.F.R.
§ 4.118, Diagnostic Codes 7803, 7804 (1995) because the scars
have been found to be healed and nontender.
The Board has also considered whether an increased rating
could be granted on an extra-schedular basis under 38 C.F.R.
§ 3.321(b)(1) (1995). Although the veteran testified that in
April 1992 that he had great difficulty in finding employment
due to his left shoulder disability, he indicated that he was
running his own company. (Hearing transcript, page 9). The
Board does not find such an exceptional or unusual disability
picture for the period in question to warrant an extra-
schedular rating. Based on these findings, the Board
determines that the preponderance of the evidence is against
a rating in excess of 20 percent for the period from May 8,
1991 to June 2, 1993, leaving no reasonable doubt to be
resolved in the veteran’s favor. See 38 C.F.R. §§ 3.102,
4.3 (1995).
2. Period from August 1993
Anklyosis of scapulohumeral joint has not been shown to
warrant a higher rating under 38 C.F.R. § 4.71a, Diagnostic
Code 5200 (1995). Again, limitation of motion of the arm to
25 degrees must be shown to warrant a 30 percent evaluation
under Diagnostic Code 5201. That severity of limitation of
motion was not shown at the September 1994 VA examination.
The veteran’s comments in July and September 1994 that he was
unable to lift and hold anything due to pain and that he
avoided using his left arm raises the issue of whether an
increased rating is warranted on the basis of a greater
limitation of motion due to pain on use including during
flare-ups. See DeLuca, 8 Vet.App. at 206. Although he
complained of pain during the September 1994 VA examination,
he was able to move his arm beyond the position required to
warrant a 30 percent rating. Furthermore, his remark to the
VA examiner that he was not able to move his left arm above
his head does not indicate limitation of motion to the level
required for a 20 or 30 percent rating. Furthermore, such
limitation of motion due to pain has not been shown by
outpatient treatment records or supported by the level of
over the counter medication taken by the veteran. The Board
finds that limitation of motion due to pain sufficient to
warrant an increased rating has not been shown.
The Board also determines that the veteran’s disability
picture does not more nearly approximate the criteria for a
30 percent rating for limitation of motion. 38 C.F.R. § 4.7
(1995). Furthermore, the evidence for the period from August
1993 does not establish an exceptional or unusual disability
picture to warrant an increased rating on an extra-schedular
basis. s 38 C.F.R. § 3.321(b)(1) (1995). The Board
determines that the preponderance of the evidence is against
a rating in excess of 20 percent for the period from August
1, 1993 for the veteran’s left shoulder disability, leaving
no reasonable doubt to be resolved in his favor. See
38 C.F.R. §§ 3.102, 4.3 (1995).
ORDER
Service connection for disabilities of the right forearm,
wrist, and ankle is denied.
Service connection for anal fissure is granted.
Service connection for a disability of the chest and ribs is
denied.
An compensable rating for bilateral sensorineural hearing
loss is denied.
A 20 percent rating for the veteran’s status post excision of
the prominence of the left scapula with bankart repair and
revision is granted for the period from May 8, 1991 to June
2, 1993, subject to the law and regulations governing the
payment of monetary benefits.
A rating in excess of 20 percent for the veteran’s status
post excision of the prominence of the left scapula with
bankart repair and revision is denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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